Turner v. State

Court of Appeals of Georgia, First Division

September 26, 2017

TURNERv.THE STATE.

BARNES, P. J., MCMILLIAN and MERCIER, JJ.

Barnes, Presiding Judge.

Brehonna
Nicole Turner was indicted for one count of malice murder,
two counts of felony murder, and two counts of aggravated
assault. Following her trial, a Douglas County jury found her
guilty of the lesser included offense of first degree
homicide by vehicle as to the three murder counts, and not
guilty of the two aggravated assault counts. Turner filed a
motion for new trial, which she later amended, and alleged
that the evidence was insufficient and that the trial court
erred by failing to give her requested charge on the lesser
included offense of second degree vehicular homicide for
failure to maintain a lane. The trial court denied the motion
for new trial, and Turner now appeals. Following our review,
we affirm.

On appeal from a criminal conviction, the defendant no longer
enjoys a presumption of innocence, and the evidence must be
construed in the light most favorable to support the verdict.
In evaluating the sufficiency of the evidence, we do not
weigh the evidence or determine witness credibility, but only
determine whether a rational trier of fact could have found
the defendant guilty of the charged offenses beyond a
reasonable doubt. Thus, the jury's verdict will be upheld
as long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the
State's case.

So
viewed, the evidence demonstrates that for approximately two
years, Turner was involved in a continuing dispute with
Kimberly Kelley about Kelley's involvement with Tacayor
Felder, the father of Turner's children. The two women
verbally sparred on their social media accounts, and during
the days leading up to the homicide, Turner also made
numerous harassing telephone calls to Kelley. On January 31,
2014, the day of the incident, Turner drove to Kelley's
residence to confront her and Felder, but left and came back
later with a friend. Kelley, Felder, the victim, who was
Kelley's cousin, and the victim's boyfriend were
among the people present inside Kelley's residence. When
Turner returned to the residence for the second time, Felder
approached the car and the two engaged in a verbal and
physical altercation, which ended when Turner sprayed Felder
with mace. Turner drove toward the subdivision exit, then
turned around and drove back down the street toward where
Kelley and the victim were standing. She bumped Kelley on her
leg with the car, then turned around in the cul-de-sac, and
drove back at a high rate of speed toward Kelley. As she
drove in that direction, Turner ran over the victim, pinning
her beneath the car, causing the victim's death.

In a
statement to police, Turner said that she went to the
subdivision to confront Kelley because she was tired of being
disrespected, and that while she was there, Felder reached
into her car and hit her, and that she sprayed him with
pepper spray. Turner said that the friend who was with her in
the car said to leave but that, "I was just so blacked
out and so mad that I turned back around and I was just
driving all over the place and I made a mistake and ran
somebody over." She also stated that although, after
initially driving off and being advised by her friend to not
go back, she "went back anyway, " and that
"something just came over [her]". Turner said she
was in a "fit of fury" and was driving "like a
bat out of hell."

1.
Turner first contends that the evidence was insufficient to
sustain her conviction for first degree vehicular homicide
because she did not commit the predicate offense of reckless
driving. Turner contends that the evidence instead
demonstrated that her car "accidentally wound up
partially on top of the victim." At trial, Turner put
forth the affirmative defense of accident and maintained that
the victim's death was caused by her inability to see
because the car was full of mace.

Under Georgia law, any person who, without malice
aforethought, causes the death of another person through the
violation of subsection (a) of Code Section 40-6-163, Code
Section 40-6-390 or 40-6-391, or subsection (a) of Code
Section 40-6-395 commits the offense of homicide by vehicle
in the first degree. OCGA § 40-6-393 (a). [Turner] was
[convicted of] first degree homicide by vehicle through a
violation of OCGA § 40-6-390, reckless driving. Reckless
driving occurs when a person drives a vehicle "in
reckless disregard for the safety of persons or
property." OCGA § 40-6-390 (a).

Although
Kelley maintains that the evidence was insufficient to
demonstrate reckless conduct, "whether a defendant's
manner of driving under the circumstances demonstrated a
reckless disregard for the safety of others is a question
that is reserved for the jury." Shy v. State,
309 Ga.App. 274, 278 (4) (709 S.E.2d 869) (2011). Here, given
the evidence of Turner's animosity and threats toward
Kelley, eyewitness testimony about Kelley's manner of
driving, Kelley's statements to police that she was
driving in a "fit of fury, " and "like a bat
out of hell, " the evidence was sufficient for the jury
to find beyond a reasonable doubt that Turner was guilty of
first degree vehicular homicide.

2.
Turner next contends that the trial court erred in not giving
her requested charge on homicide by vehicle in the second
degree based on failure to maintain a lane. Turner maintains
that she was not driving in a reckless manner, but had only
failed to maintain her lane, which then resulted in the death
of the victim. Thus, according to Turner, the facts justified
a lesser included charge of homicide by vehicle in the second
degree, and the trial court's failure to so charge
constituted plain legal error. We do not agree.

"OCGA
§ 40-6-393 distinguishes between first degree and second
degree vehicular homicide according to the severity of the
underlying traffic offense." Otuwa v. State,
319 Ga.App. 339, 341 (2) (734 S.E.2d 273) (2012). As
previously noted, under OCGA § 40-6-393 (a), first
degree vehicular homicide is defined as causing the death of
another person through the violation of certain specified
traffic laws, including, as was found in this case, reckless
driving. Whereas, in circumstances of second degree vehicular
homicide, the cause of the death is by violating any Title 40
traffic law not referenced in OCGA § 40-6-393 (a), such
as speeding or, as Turner claims, failure to maintain a lane.
See OCGA § 40-6-393 (c). Because the difference between
first and second degree vehicular homicide is the predicate
traffic offense, second degree vehicular homicide is
considered a lesser included offense of first degree
vehicular homicide. Hayles v. State, 180 Ga.App.
860, 861 (3) (350 S.E.2d 793) (1986).

[W]ith regard to giving a defendant's requested charge on
a lesser included offense[, ]. . . .where the state's
evidence establishes all of the elements of an offense and
there is no evidence raising the lesser offense, there is no
error in failing to give a charge on the lesser offense.
Where a case contains some evidence, no matter how slight,
that shows that ...

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